Editor's Note :

We are expecting one or more decisions in argued cases tomorrow at 10 a.m. We will be live-blogging the opinion(s) as they are released. However, there is no live blog of tomorrow’s oral argument in King v. Burwell. We will have coverage of that argument as soon as possible after it is finished; the transcript should be available tomorrow afternoon, and the audio will be available on Friday. Wednesday's live blog will be available here.

Analysis: A pass for high officials?

Posted Mon, May 18th, 2009 2:24 pm by Lyle Denniston

Analysis

Without mentioning the current controversy over holding high officials of the Bush Administration legally to blame for torture allegedly carried out against detainees held overseas by the U.S. military or Central Intelligence Agency, the Supreme Court on Monday signaled that it may be very difficult to hold them accountable in some future lawsuit by a detainee claiming such abuse. The Court ruled that high officials cannot be held responsible for the actions of individuals down in the ranks, but can only be found liable for their own personal misconduct.

That does not amount to a legal pass, but it does require anyone who would seek damages for being unconstitutionally abused while in custody (military or otherwise) to come forth with specific proof that high-ranking government officials directly and personally committed illegal acts. This was accomplished without explicitly fashioning a new form of legal immunity to apply in the aftermath of a terrorist attack.

Much attention to the Court’s 5-4 ruling in Ashcroft v. Iqbal (07-1915) will be focused, of course, on whether former Attorney General John D. Ashcroft and current FBI Director Robert Mueller will ultimately be held accountable for the FBI roundup within the U.S. and subsequent abuse of men of Arab descent in the immediate wake of the Sept. 11, 2001, attacks.

But the larger meaning of the decision may well turn out to be the flat rejection of the notion of liability for the misconduct of subordinates — an issue, according to Monday’s dissent, that the Court reached out on its own to address even after both sides conceded there might sometimes be high-level liability for subordinates’ unconstitutional acts.

Why it may be somewhat puzzling that the Court would take on an issue beyond what the case seemed to require, there may be a clue within the majority opinion written by Justice Anthony M. Kennedy. The opinion embraces the concerns expressed by a lower court judge over government officials being challenged for their response to “a national and international security emergency unprecedented in the histwory of the American Republic.”

One of the questions over-hanging the Ashcroft case throughout its journey to and through the Supreme Court was whether the Justices would be tempted — by the post-9/11 atmospherics — to create some special crisis-based legal shield for official actions. They may now have done just that, even though most of the language of the Kennedy opinion is more general, defining what is required to keep a case in federal court from being dismissed at the beginning when the claim is that government officials have acted unconstitutionally.

The Iqbal case, as it reached the Supreme Court, was a civil rights damages lawsuit aimed directly at Ashcroft and FBI chief Mueller by Javald Iqbal, a cable TV installer who lived in Hicksville on New York’s Long Island until rounded up in the wake of 9/11 (he is a Muslim Pakistani) along with more than 1,000 others, mostly men of Arabic descent.

With Monday’s ruling finding by the Court majority that his lawsuit was too thin on facts, his case returns to the Second Circuit Court, which had previously allowed it to proceed. It will be up to that Court, in the first instance, to decide whether to give Iqbal a chance to come up with more facts to support his claim against Ashcroft and Mueller. But, if the Circuit Court does allow that, he will have to marshal facts that charge Ashcroft and Mueller with direct participation in unconstitutional actions against him personally. However much he claims to have been tortured or abused or to have had his Muslim faith defiled while in custody after the FBI “sweep,” he could not win on the point unless he can put the two high officials in the very midst of that mistreatment. A claim of mere knowledge that it was going on, apparently, would not be enough. Neither, it appears would a claim that they were deliberately indifferent to what was going on. Monday’s decision already has found such assertions to be insufficient.

As the Court majority read Iqbal’s lawsuit, in the form in which it was filed, they concluded that “all it plausibly suggests is that the Nation’s top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity.”

Within that perception of what Iqbal was claiming, the majority found it unremarkable that, since the 9/11 terrorists were Arab Muslims associated with the Al Qaeda terrorist network, it would occur that a roundup after that attack would focus on Arab Muslims. That harsher impact on men of one faith and ethnic identity, Justice Kennedy wrote, can be explained by reasons other than religious or ethnic bias.

Because the Iqbal case involved an FBI “sweep” carried out within the U.S. against individuals living here legally, it says nothing directly about what an alien detainee claiming torture or abuse at some U.S. detention site overseas — including Guantanamo — would have to say in a lawsuit against high officials to keep the case from being dismissed. It seems doubtful, though, that the Court would relax the evidence-pleading standard it has adopted for a domestic case for use in an overseas-based case.

It no doubt will fall first to the lower courts to spell out when, if ever, a high official has such a deep involvement in torture or abuse will face legally accountability for the actions.

Merits Case Pages and Archives

On Monday the Court issued orders from its February 27 Conference. Two new cases were granted. On Tuesday the Court announced its decision in Direct Marketing v. Brohl. This is the second week of the February sitting.

“I think always the humor was a means to an end. And the end is, to help folks who don’t live in this world understand why it matters.” Dahlia Lithwick covers the Supreme Court and writes about law more broadly for Slate.com. In this six-part interview, Ms. Lithwick discusses law school, practicing law, and how […]